Attorney General of Arkansas — Opinion
Opinion Delivered June 31, 1998
WINSTON BRYANT, Attorney General
The Honorable Sharon Priest, Chairman State Board of Election Commissioners State Capitol, Room 024 Little Rock, AR 72201
Dear Ms. Priest:
This is in response to your request, on behalf of the State Board of Election Commissioners, for an opinion as to whether county election commissioners are officials of the “county” or the “state.”
My review indicates that resolution of this question likely depends upon the particular context in which the question is asked. While it seems clear that members of county boards of election commissioners (“county board” or “county election commissioners”) are public officers (se Warren v. McRae, 165 Ark. 436, 441, 264 S.W. 940 (1924)), my research has yielded no Arkansas authority concerning whether for all intents and purposes they are officials of the county or of the state. It appears that they are not created under state law exclusively as either “county” or “state” officials.
A review of the various Arkansas Code provisions governing elections and specifically addressing county boards of election commissioners illustrates this point. The county election commissioners conduct the primaries in each county “under the direction of the State Board of Election Commissioners.” A.C.A. § 7-7-201(b)(1) (Supp. 1997). The third member of each county board is appointed by the State Board of Election Commissioners (“State Board”). A.C.A. § 7-4-102(b) (Supp. 1997). The State Board fills vacancies in this “third member” position (A.C.A. §7-4-104(c) (Supp. 1997), and the State Board fills vacancies in the county party chairman position under certain circumstances. Id. at subsection (b). Further, following an election, each county election commissioner must file an affidavit with the State Board assuring compliance with all duties and responsibilities. A.C.A. § 7-4-107(e) (Supp. 1997). Clearly, moreover, as stated by the Arkansas Supreme Court (citing A.C.A. § 14-14-807(3)), the Arkansas Code “reserves to the General Assembly decisions regarding the holding of elections.” Union County v. Union Co. Election Comm’n, 274 Ark. 286, 623 S.W.2d 827
These provisions suggest that county election commissioners act under the control of and are answerable to the state. And indeed there is general authority for the proposition that election officers are state officers.See 25 Am. Jur. 2d Elections § 89 (1996).
Several other Code provisions make it difficult, however, to assign county election commissioners the general status of “state officials.” For instance, in accordance with A.C.A. § 7-4-106(b) (Repl. 1993), the county (or prosecuting attorney) must defend any civil lawsuit brought against the county board. County election commissioners must be residents of the county in which they serve. A.C.A. § 7-4-109(b) (Supp. 1997). This office has previously opined that county election commissioners’ fees (see A.C.A. § 7-4-111 (Supp. 1997)) are properly considered as “expenses of general elections” (A.C.A. § 7-5-104 (Repl. 1993)) which are payable by the county, with cities and towns providing the required reimbursement. Id. See generally Op. Att’y Gen. 94-399.
These compensation-related provisions all stand in stark contrast to the provision in A.C.A. § 7-4-111 (Supp. 1997) for compensation of the State Board of Election Commissioners in accordance with A.C.A. § 25-16-901 et seq. (Repl. 1996 and Supp. 1997), which establishes stipends for state board members (§§ 25-16-903 through -905) and expense reimbursement of such members, not to exceed “the rate established for state employees by state travel regulations.” (§ 25-19-902(b)).
It thus must be recognized that at least for some purposes, county election commissioners are not considered state officials or state employees; and indeed they appear to be treated as county officials or employees for compensation purposes. It should perhaps also be noted that in one Arkansas Supreme Court decision involving county election commission expenditures, the court referred to the commission as “anagency of county government which performs a function imposed by law. . . .” Union County v. Union Co. Election Comm’n, supra, 224 Ark. at 291 (emphasis added).
The difficulty, and perhaps even the impossibility, of designating county election commissioners as either “county” or “state” officials for all purposes is, I believe, apparent from the foregoing. Certainly, they may reasonably be considered state officers as concerns their duty to administer state election laws within the state’s sovereign powers. But it also seems clear that there are contexts in which they are treated more as officers or perhaps employees of the county. I must therefore conclude that their status will likely vary with the particular circumstances or purpose for which the term “state” or “county” official is employed.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
WINSTON BRYANT Attorney General